Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-02-08
CLAIM.
The Opinion OF the Second Comptroller
With Regard To Law Points.
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With Regard To Law Points
Special TAegrGa 20 ne ReqtSI.
WASHINGTON, February 3.-Followins
is the opinion of the Second Comptroller's
Office with regard to the law points IN
yolyed in the settlement Of the claim Of
Berkeley county for use and occupation
of the court hOuse and Jail at Martinsburg.
As will be seen from the memorandum the
claim is suspended in the Third Auditors
Office.
TREASURY DEPARTMENT.
SECOND CONTROLLERS OFFICE,
February =, 1851
I'm the matter of The claim Of Berkeley county,
Wet TrgiaiG. per ". S. Grenthdm,
County Judge for the use and occupation Of
Court House aad jail, situated at Martins
burg. in said county, for three gears and
four months during the Icdr, and for repairs
10 the same rendered necessary 6y said Oecu-
patton. Claim fIed In 1874, Sl3,733-S2.
Memorandum.
This claim is suspended in the Third
Auditors Office for the reason, as l am in
formed, that in the judgement of that
officer, there is no law under which it can
be paid.
The Act of July 4, 1864, (13 ST., 3Sl)
excluded the Court Of Claims from juris-
dietion of ''claims growing out of the de-
.struction or appropriation OF or damage to
property by the army or navy engaged in
the suppression OF the rebellion"
The same act provided that the claims OF
loyal citizens of States not in rebellion, for
quartermaster and commisSary stores might
be presented 10 the Quartermaster General
or the COmmiSSary General, as the case
might he, and upon favorable recommended
ton from either of said officers such claims
might be audited and paid by the account
ing officers of the Treasury.
The Act OF February 81, 1861, ia St,
397) gave legislative construction to the
Act of 1861. IL provided that the Act OF
1864 SHOULD not be construed 10 authorize
the settlement of any claims for supplies
or stores taken or furnished for the use of,
or used by. the armies Of the United States
nor for the occupation Of or injury TO real
etate, nor for the consumption, appro-
priatiOn, or destruction OF, or damage to
personal property, by the military authOri-
ties of the United States where such claim
originated during the war for the suppress
sion of the Southern rebellion, in State or
part of a State declared in insurrectiOn by
a proclamation of the President of the
United States of July l, 1862"
By proclamation of the President OF
July |, 1862, Virginia, with certain deSig.
mated counties excepted, was declared To
be in insurrectiOn IL St, 1866. Berkeley
county was not one of those excepted
from the effect OF the proclamation. These
counties, together with a few Others, were
subsequently, by Act of December 81. lS62,
and proclamation of April 20. ls63, ll2
St, 6S3l erected into the State Of West
Virginia. Berkeley, however, was not
then included in the new State, and only
become part OF West Virginia, by Joint
Resolution of March Ia. l266, by virtue of
which Congress recognized the transfer OF
Berkeley and Jefferson cnunticS from Nlr-
ginia To West Virginia IA ST. &5n).
BY Joint Resolution Of June l., 1866,
the prov iSiOnS of the Act of July 4, 1864,
were extended to the counties of Berkeley
and Jefferson in West Virginia. III ST.,
$50. Rnt the Act of July 4, 1854, only
authorized the accounting officers Of the
Treasury TO audit and settle the claims Of
lOval citizens in States not in rebel
lion for guartermaster and
cOmmissaTy stores. 1t cOnfers no
power TO pay for the use and occupation
of real estate, and by the Act OF February
81, 1861, it is expressly declared that the
Act of July 1, lS6i, shall not he construed
q. ,,.h,rs, Nha ,,.,Fpnanf nf a1aip.a for tho
occupation of or damage tn real estate by
the military authorities of the United
States in "A State or part of "A State declared
in inSurrectiOn This act heing subsequent
in date To the passage of the Joint ResOlu-
tiOu OF June l., 1859, by which the pro-
visions of the Act of July 1. 1861, were
extended to the counties of Berkeley and
Jefferson in West Virginia, must hc held
Ia remove all doubts lii indeed there We're
any aS to the nature and character Of
claims having their origin in said counties
Congress intended should he paid. Pay
ment for occu patton of or damage to real
estate is strictly prohibited, when there is
no contract other than such * Is implied
from use and occupation.
Section 300, 4 and h, Revised Statutes
the Act of 1904 says the above W sec
tons shall extend To the State OF Tennessee
and 10 the counties of Berkeley and Jeller-
son in West Virginia. But the provisions
of the above two sections 800 A b shall
not be construed TO authorize the payment
of claims for the occupation of or injury to
real estate in any State declared in inSur-
rection during the rebellion.
The foregoing, OfcOurSe, does not apply
when there was au express contract. In
such cases the claim wOuld he within the
rule laid down in Green's case rs It. Of
Gins, 93) and the accounting officers
would have jurisdiction to audit and pay a
claim arising on n contract such aS there
was in that case.
RICHARD K. MCMAHON,
Deputy Comptroller.